Rodriguez v. Commissioner of Correction

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JULIO RODRIGUEZ v. COMMISSIONER
OF CORRECTION
(AC 35346)
Gruendel, Sheldon and Flynn, Js.
Argued April 14—officially released June 24, 2014
(Appeal from Superior Court, judicial district of New
Haven, Hon. Anthony V. DeMayo, judge trial referee.)
Peter G. Billings, assigned counsel, for the appel-
lant (petitioner).
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Robin Lipsky, former senior assistant
state’s attorney, for the appellee (respondent).
Opinion
GRUENDEL, J. The petitioner, Julio Rodriguez,
appeals from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. He
claims that the court improperly concluded that he had
not established that his trial counsel rendered ineffec-
tive assistance. We affirm the judgment of the habeas
court.
This case involves a gang related murder. In early
February, 1996, members of the Latin Kings and the
Neta gangs met at a home on River Street in Waterbury.
The petitioner was a member of the Latin Kings and
was present at that meeting, as were Brandon Rivera
and Julio Lugo. Both gangs were upset with Anthony
DeJesus, a former member of the Latin Kings who
recently began selling heroin ‘‘on turf’’ purportedly
belonging to the Neta gang. At that meeting, both gangs
agreed that DeJesus should be murdered and approved
an ‘‘order’’ to that effect.
As recounted by this court in the petitioner’s direct
appeal, ‘‘[o]n February 15, 1996, [DeJesus] was shot to
death during the course of a robbery. Approximately
two weeks later, Maryanne Terpack, the [petitioner’s]
pregnant girlfriend, gave Waterbury police a statement
that implicated [him] in the killing.1 After giving that
statement to the police, Terpack was incarcerated at
York Correctional Institution in Niantic as a result of
an outstanding warrant. On March 8, 1996, in the late
morning, the [petitioner] was located in Bristol by the
police. [He] voluntarily agreed to return to the Water-
bury police station in the company of Sergeant Michael
Ricci and Detective Gary Pelosi. When they arrived,
the [petitioner] was advised of his constitutional rights
orally and in writing. The [petitioner] also signed an
advisement of rights card after demonstrating his profi-
ciency in the English language. The [petitioner] was
then questioned by Ricci in an interview room. During
the questioning, the [petitioner] admitted his involve-
ment in the murder. At approximately 2 p.m., Ricci
started taking the [petitioner’s] written statement. The
[petitioner] signed the completed statement at approxi-
mately 5:15 p.m.’’ State v. Rodriguez, 56 Conn. App.
117, 118–19, 741 A.2d 326 (1999), cert. denied, 252 Conn.
926, 746 A.2d 791 (2000).
In his written confession, the petitioner stated in rele-
vant part: ‘‘I, Julio Rodriguez, do give this statement
voluntarily, having been advised of my rights and waiv-
ing these rights. On Thursday, February 15, 1996 . . .
I hooked up with Brandon Rivera and Julio Lugo and
we chilled on Mill Street for a while until a Waterbury
kid, who I think is a Neta gang member, showed up. The
Waterbury kid was driving a black Caddy or Oldsmobile.
Julio Lugo [and] Brandon Rivera told me to get in my
car and let’s go do this. I knew that they wanted to go
rob [the victim] at this time. Julio Lugo and Brandon
Rivera got into the Waterbury’s kid’s car with the Water-
bury kid driving. I was supposed to be a lookout for
the cops and both me and the other guys had a walkie
talkie. It was about nine o’clock p.m. I was parked on
the top of East Clay Street near the stop sign and I
could see all the way down to [the victim’s] house. I
saw the black car with Brandon Rivera, Julio Lugo and
the Waterbury kid pull up behind a house on the same
street as [the victim’s] . . . . I talked to them on the
walkie talkie and told them everything was straight and
there was no cops around. I then saw Brandon Rivera,
Julio Lugo and the Waterbury kid walk down the street
towards [the victim’s] house and I saw all three of them
go down to [the victim’s] house. It looked like they
opened a gate near the fence at [the victim’s] house. I
then saw the three of them go towards the back of [the
victim’s] house. . . . While I was sitting in the car
watching out for them I heard what sounded like a lot
of gunshots. The shots were coming from the direction
of [the victim’s] house. I heard about eighteen or nine-
teen shots. I then saw Julio Lugo, Brandon Rivera and
the Waterbury kid come running from the back of [the
victim’s] house. The three of them ran up East Clay
Street . . . . I saw the black car pull out and I drove
behind it. I told them on the walkie talkie that if they
had money to save me some money . . . .’’ The peti-
tioner also stated in his written confession that, follow-
ing the shooting, a friend drove the petitioner and
Terpack to Saint Mary’s Hospital because Terpack ‘‘had
pains in her stomach . . . .’’
The petitioner thereafter was charged with aiding
and abetting murder in violation of General Statutes
§§ 53a-8 (a) and 53a-54a, criminal attempt to commit
robbery in the first degree in violation of General Stat-
utes §§ 53a-49 (a) (2) and 53a-134 (a) (1) and (2), and
felony murder in violation of General Statutes § 53a-
54c. Prior to trial, the petitioner moved to suppress his
written confession, claiming that it was involuntarily
made. After a hearing, the trial court denied that motion.
The petitioner thereafter obtained new legal counsel,
who filed a second motion to suppress the written con-
fession, arguing that he should be provided a ‘‘fresh
start.’’ The court granted that motion and conducted a
second suppression hearing, at the conclusion of which
the court denied the petitioner’s second motion to
suppress.2
Following a trial, the jury found the petitioner guilty
of aiding and abetting murder; it acquitted him on the
felony murder and attempted robbery counts. The court
rendered judgment accordingly, sentencing the peti-
tioner to a total effective term of fifty years incarcera-
tion. From that judgment, the petitioner directly
appealed to this court, which affirmed the judgment of
conviction. State v. Rodriguez, supra, 56 Conn. App.
122.
On June 6, 2005, the petitioner filed a four count
amended petition for a writ of habeas corpus. The first
count alleged actual innocence while the second and
fourth counts alleged ineffective assistance of trial
counsel. The third count, which the petitioner withdrew
at the commencement of the habeas trial, alleged that
the petitioner’s incarceration is illegal because his writ-
ten confession was involuntarily made. Only two indi-
viduals testified at the habeas trial—the petitioner and
his trial counsel, Attorney Michael Moscowitz. At the
conclusion of that trial, the court rejected all of the
petitioner’s claims. Accordingly, the court denied the
petition and subsequently granted the petition for certi-
fication to appeal. This appeal followed.
In this appeal, the petitioner challenges the propriety
of the court’s determination that Moscowitz did not
render ineffective assistance in failing to investigate his
alibi defense.3 During the habeas trial, the petitioner
testified that he asked Moscowitz to call Jorge Sierra,
Jorge Galante, and Sully Lugo to testify at his criminal
trial in support of his contention that he was at Saint
Mary’s Hospital at the time of the shooting. He now
claims that the failure to do so violated his right to
effective assistance of counsel.
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . In Strickland v.
Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)], the United States Supreme Court
adopted a two-part standard for evaluating claims of
ineffective assistance of counsel during criminal pro-
ceedings: the defendant must show: (1) that counsel’s
representation fell below an objective standard of rea-
sonableness . . . and (2) that defense counsel’s defi-
cient performance prejudiced the defense. . . . The
first part requires showing that counsel made errors so
serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment.
. . . In determining whether such a showing has been
made, judicial scrutiny of counsel’s performance must
be highly deferential. . . . The reviewing court must
judge the reasonableness of counsel’s challenged con-
duct on the facts of the particular case, viewed as of
the time of counsel’s conduct. . . . The second part
requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose
result is reliable. . . . The defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.’’ (Citations omitted; internal
quotation marks omitted.) Calabrese v. Commissioner
of Correction, 88 Conn. App. 144, 150–51, 868 A.2d 787,
cert. denied, 273 Conn. 936, 875 A.2d 543 (2005).
‘‘Because both prongs [of Strickland] must be estab-
lished for a habeas petitioner to prevail, a court may
dismiss a petitioner’s claim if he fails to meet either
prong.’’ (Internal quotation marks omitted.) Poulin v.
Commissioner of Correction, 103 Conn. App. 303, 309,
928 A.2d 556, cert. denied, 284 Conn. 918, 931 A.2d
937 (2007).
The petitioner cannot establish the requisite preju-
dice stemming from Moscowitz’ alleged failure to inves-
tigate the alibi defense. Although he claims that Sierra,
Galante, and Sully Lugo potentially could have testified
on his behalf at his criminal trial, the petitioner did not
offer the testimony of any of those individuals at his
habeas trial. The petitioner also did not present any
evidence as to precisely what testimony those witnesses
would have offered had Moscowitz called them to tes-
tify at his criminal trial. As a result, he cannot demon-
strate, as he must, that those individuals would have
substantiated his allegation that he was at the hospital
at the time of the shooting. See, e.g., Norton v. Commis-
sioner of Correction, 132 Conn. App. 850, 859, 33 A.3d
819 (petitioner cannot prevail on claim that trial counsel
was ineffective for failing to investigate witnesses when
‘‘the petitioner has not presented us with any beneficial
testimony from these witnesses that would demonstrate
how they would have assisted in his case had trial
counsel interviewed them’’ and thus ‘‘failed to establish
that further investigation of these witnesses would have
been helpful to his defense’’), cert. denied, 303 Conn.
936, 36 A.3d 695 (2012); Lambert v. Commissioner of
Correction, 100 Conn. App. 325, 327–28, 918 A.2d 281
(prejudice not established where petitioner failed to
call alibi witness at habeas trial or offer evidence as to
what [witness] would have testified), cert. denied, 282
Conn. 915, 924 A.2d 138 (2007); Hooks v. Commissioner
of Correction, 61 Conn. App. 555, 557, 764 A.2d 1291
(2001) (petitioner cannot establish ineffective assis-
tance of counsel for failure ‘‘to investigate certain wit-
nesses’’ when ‘‘[n]one of those witnesses testified at
the habeas trial’’ and no evidence introduced as to ‘‘how
that testimony may have supported his claims’’).
Moreover, the petitioner’s alleged alibi defense is con-
trary to ample evidence in the record before us. The
emergency room records from Saint Mary’s Hospital,
which were admitted into evidence in his criminal trial,
indicate that Terpack was admitted at 10:45 p.m. on
February 15, 1996, approximately forty-five minutes
after the shooting.4 That evidence is consistent with
the petitioner’s statement in his written confession that,
following the shooting, ‘‘Junior dropped me and Jorge
[Sierra] and [Terpack] off at the hospital and I stayed
there until I heard the cops were coming to the
hospital.’’
On a more fundamental level, the petitioner’s alibi
defense is contrary to the written statements that he
and Terpack provided the police. Both implicate the
petitioner in the shooting and indicate that he was near
the murder scene—and not the hospital—as gunshots
struck the victim. Julio Lugo likewise testified at trial
that the petitioner was ‘‘trying to hide behind [Julio
Lugo’s] house’’ at approximately 10:15 to 10:30 p.m. on
the night of the shooting. When Julio Lugo asked the
petitioner ‘‘what was going on,’’ the petitioner told him
that ‘‘they had just finished killing somebody.’’ In addi-
tion, Moscowitz testified at the habeas trial that, in
preparing for the petitioner’s criminal trial, he received
information relating to the petitioner’s participation in
the murder that he did not present at trial.5 Specifically,
Moscowitz testified that he received additional informa-
tion that the petitioner ‘‘was an officer in the Latin
Kings; that he actually was the one who was given the
money [and] that he participated in the murder.’’ In light
of the foregoing, the habeas court in its memorandum of
decision observed that ‘‘no reasonable trier [of fact]
could acquit’’ the petitioner on the aiding and abetting
murder count.
The prejudice prong of Strickland requires the peti-
tioner to establish ‘‘a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.’’ (Internal quota-
tion marks omitted.) Calabrese v. Commissioner of
Correction, supra, 88 Conn. App. 151. That he has not
done. We therefore conclude that the court properly
denied the amended petition for a writ of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Terpack’s written statement provides in relevant part: ‘‘My boyfriend is
[the petitioner] . . . . On February 15, 1996, I went to the emergency room
at St. Mary’s Hospital in Waterbury at about 8:30 p.m. I was admitted . . .
because of a ruptured appendix. I was in a room in the hospital and [the
petitioner] was with me until the nurse asked him to leave . . . . I did not
see [the petitioner] again until later, and I am not sure what time it was.
Later that evening [the petitioner] came back to see me and at this time he
told me that another friend of ours, whose name is Julio Lugo, had shot a
brother six times. By brother I mean a Latin King member, because [the
petitioner] and Julio Lugo are both Latin King gang members. . . . [The
petitioner] went on to tell me that he, Brandon Rivera and another guy from
Waterbury . . . had went along with Julio Lugo to be lookouts. [The peti-
tioner] said that he stood on one side of the house, Brandon Rivera stood
on the other, and the Waterbury guy stayed in the back by the fence . . . .
[The petitioner] told me that after the [victim] had been shot they all ran
away.’’
2
This court affirmed the propriety of that determination on direct appeal.
State v. Rodriguez, supra, 56 Conn. App. 122.
3
In this appeal, the petitioner does not contest the court’s rejection of
his claim of actual innocence.
4
A 911 call reporting the shooting was placed at approximately 10:00 p.m.
on the night of February 15, 1996. Officer Manual Tirado of the Waterbury
Police Department responded to a dispatch call and arrived at the murder
scene at 10:06 p.m.
5
Moscowitz was called as a witness at the habeas trial by the petitioner.